The Allahabad High Court has granted bail to Samajwadi Party leader Azam Khan in the Jal Nigam recruitment scam.
A single-judge bench of Justice Ramesh Sinha passed this order while hearing a Criminal Misc Bail Application filed by Mohammad Azam Khan.
Khan, who was elected from Rampur for a record 10th time in yesterday’s election results, has filed the first application for bail under Section 439 of the Code of Criminal Procedure, 1973, seeking bail in Case under Sections 201, 204, 420, 467, 468, 471 read with 120-B of the Indian Penal Code, 1860 and Section 13 of the Prevention of Corruption Act, police station SIT, district Lucknow (Sadar).
It has been alleged in the FIR that on a complaint filed by the retired Executive Engineer, UP Jal Nigam dated March 22, 2017 regarding the irregular appointment on 1300 vacant posts in UP Jal Nigam, Uttar Pradersh, dated 13th July, 2017, entrusted the matter to the Special Investigating Team, Uttar Pradesh, Lucknow to conduct enquiry on it.
In Pursuant to the order dated 13th July, 2017, the Additional Director General, S.I.T, Uttar Pradesh, Lucknow order dated 18.07.2017, appointed the Inspector Atal Bihari, SIT, Lucknow, as enquiry officer into the matter. After completion of enquiry, the Inspector, SIT, Lucknow had submitted its report dated 28.03.2018 to the State Government. After that, a Committee headed by Principal Secretary (Home), Government of U.P, Lucknow, vide order dated 25.04.2018, approved the recommendation made in the enquiry report dated 28.03.2018 and directed to take further action into the matter.
Further, it has been alleged in the FIR that during enquiry, it was found that an advertisement was issued for recruitment on the post of Assistant Engineer on 19.11.2016; for recruitment on the post of Junior Engineer on 28.10.2016; and for recruitment on the post of Clerks and Stenographers on 18.06.2016, in total for 1300 posts, by calling applications and examination fee from the candidates through on-line.
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It is alleged that the Chairman of the Jal Nigam had unauthorizedly approved the proposal of the Managing Director and the Officer-on-Special Duty for conducting the examination of Assistant Engineer and Junior Engineer and for conducting the examination of Clerks and Stenographers through M/s Aptech Ltd, Mumbai without the recommendation of Jal Nigam Board on 25.10.2016 and 19.05.2016, respectively.
It has further been alleged that as per Section 7 (3) of the Uttar Pradesh Water Supply and Sewerage Act, 1975 the Chairman of UP Jal Nigam has no managerial authority and there is no provision in the Act for the post of Officer-on-Special Duty (OSD).
According to Section 8 of the said Act, the Jal Nigam Board has the right to recruit personnel in the Jal Nigam.
It is alleged that the work of communicating the files related to the recruitment to the Special Officer/Chairman without presenting it before the Jal Nigam Board by the Managing Director has been done with malicious intent in contravention of the provisions of the Act. Computer Based Test (CBT) was conducted on various dates for selection to all the above posts.
The Chairman of the UP Jal Nigam, Officer-on-Special Duty, Managing Director, Jal Nigam and other officers of Jal Nigam, in violation of the rules, without submitting the proposal before the Jal Nigam Board and without obtaining the approval from the Government, approved 04 posts for recruitment from the candidates of Computer Science/Electrical and Electronics out of approved 09 posts of Assistant Engineer (Electrical / Mechanical), by misusing the position of the post. The above 04 posts were not approved by the Government.
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According to the rules of Jal Nigam, the Managing Director and Chairman have no right regarding the change of posts. The proceedings related to the examination of 32 successful candidates for interview of Stenographers dated 20.12.2016, have been unauthorizedly, irregularly and arbitrarily cancelled by the Chairman, causing loss of Government exchequer amounting to Rs 37,50,000.00.
It is also alleged in the FIR that in the agreement entered between UP Jal Nigam and M/s Aptech Ltd for the recruitment of the posts in question, it has been mentioned that as soon as the examination is over, the answer key will be displayed.
The responsible officers of Jal Nigam and authorized representatives of M/s Aptech Ltd deliberately conspiring themselves to give undue advantage to ineligible candidates with dishonest and fraudulent intentions, violating the aforesaid provision, had uploaded the answer key on the website of Jal Nigam on 28.02.2017 i.e after about 02 months after declaration of the result only when demand under the Right to Information Act was made by the candidate(s) for uploading the answer key, because of which, deficiency in answer key and response sheet could not be revealed in time and the candidates did not get the time to react on it, whereas on 03.01.2017, the candidates were issued appointments after declaring the result and also made joining.
It has also been alleged that the candidates selected for the post of Assistant Engineer, who got less marks in CBT examination, were given maximum marks of 90 percent in the interview, whereas the candidate who got maximum marks in CBT examination was declared failed by providing 58% marks. This process is in relation to many selected candidates.
Senior Advocate Kapil Sibal, appearing on behalf of Azam Khan, has argued that the case registered at police station SIT, District Lucknow (Sadar) relates to the conduct of online examination of UP Jal Nigam. At that time, the applicant was the Minister of Urban Development and in that capacity, he was also appointed as Chairman of the UP Jal Nigam.
He argued that for the conduct of on-line examinations, the Jal Nigam selects service providers having experience in conducting on-line examinations. The particular service provider who is ultimately charged with the responsibility of conducting the on-line examinations for recruitment to the U.P Jal Nigam is recommended through a selection process and the Institution selected is recommended by the Managing Director of the UP Jal Nigam and the Minister in-charge has to approve the recommendation before the selected institution is formally granted the contract to conduct the on-line examination.
He argued that in this view of the matter, the Managing Director of the UP Jal Nigam had submitted a proposal dated March 3, 2016 for conducting online examinations through Tata Consultancy Services, which was approved by the applicant being Chairman of the UP Jal Nigam on 4.3.2016 in terms of Sections 9 and 10 of the U.P Water Supply and Sewerage Act, 1975, however, Tata Consultancy Services expressed its inability to conduct the said examination.
Per contra, Vinod Kumar Shahi, Additional Advocate General appearing on behalf of the State, opposed the prayer of bail of the applicant and has argued that looking to the nature and gravity of the offence committed by applicant, the applicant is not liable to be enlarged on bail.
The Court noted that,
On specific query being made to the Additional Advocate General about the four allegations levelled against the applicant in the FIR and what clinching evidence has been collected during the course of the investigation showing his active role in the recruitment process in question on the basis of which charge-sheet has been submitted against the applicant, Additional Advocate General has very fairly stated that there is no direct evidence against the applicant in the charge sheet and he only stated that the applicant being a powerful and influential person, no direct evidence could be collected against him.
It has been pointed out that in all, 87 criminal cases have been registered against the applicant. The applicant has been released on bail in all cases, except two cases including the case.
It is noticed that at present, the applicant is no longer holding any post in the affairs of the State. There is no further chance of tampering the evidence. The charge-sheet has been filed on 24.05.2021 and the trial Court has taken cognizance of it.
It further transpires that on the recommendation of the Managing Director and officials of the UP Jal Nigam, the applicant being the Chairman of the U.P Jal Nigam had only consented the recruitment to be done by M/s Aptech Ltd when TCS shown its inability to conduct the said on-line examination.
“Without expressing any opinion on the merits of the case and taking into account the facts that out of fifteen accused persons of the case, twelve accused persons have been granted anticipatory bail by a Co-ordinate Bench of the Court and two accused persons have been granted interim bail; applicant has been incarcerated in jail in the case since 19.11.2020; the Additional Advocate General has failed to point out any clinching evidence from the charge-sheet against the applicant, which shows the active participation of the applicant in the recruitment process in the U.P Jal Nigam; Additional Advocate General has also failed to indicate any misappropriation or financial irregularity on the part of the applicant but only stated that the selection process for recruitment in U.P Jal Nigam was irregular and not in accordance with the prescribed procedure, which was adjudicated and decided in writ petition by a Co-ordinate Bench of the Court; charge-sheet has been submitted against the applicant and the trial Court has taken cognizance on it; and there is no further chance of tampering the evidence, the Court is of the view that the continued custody of the applicant, prima facie, may not be necessary for the purpose of further investigation and trial in the case”, the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant, Mohammad Azam Khan, involved in Case under Sections 201, 204, 420, 467, 468, 471 read with Section 120-B I.P.C and Section 13 of the Prevention of Corruption Act, Police Station SIT, District Lucknow (Sadar) be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial;
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
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(v) The applicant shall not leave India without the previous permission of the concerned trial Court and if he has a passport, the same shall be deposited by him before the concerned trial Court.
The trial court is directed to expedite the trial of the aforesaid case and conclude the same, in accordance with law, expeditiously, if there is no legal impediment.